Jammu & Kashmir High Court
Ganesh Pundlik Rao Waghmode vs U.O.I.And Ors. on 3 February, 2016
1
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
SWP No. 655/2005
MP No. 730/2005
Date of decision: 03.02.2016
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Ganesh Pundlik Rao Waghmode vs. Union of India and others
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Coram:
Hon'ble Mr. Justice Janak Raj Kotwal, Judge
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Appearing counsel:
For petitioner(s) : Mr. Anil Mahajan, Advocate
For respondent(s) : Mr. Danish Butt, CGSC
__________________________________________________ i. Whether approved for reporting in Press/Media : Yes/No/Optional ii. Whether to be reported in Digest/Journal : Yes/No
1. Petitioner was a Constable in CRPF (for short the Force).
He was posted in 136 BN, Bantalab, Jammu. He availed 15 days' paternity leave with effect from 08.10.2001 to 22.10.2001. He should have reported to duty on 23.10.2001 but he overstayed the leave. The Commandant of the Battalian, herein respondent No. 5, vide order No. P-VIII-1/02-EC-II dated 28.09.2002 awarded punishment of 'dismissal from service' with immediate effect to the petitioner. The first Appellate Authority rejected the appeal filed by the petitioner vide his order No. R-XIII-1/2003-EC-III dated 24.07.2003. Likewise, the revision filed by the petitioner was also 2 dismissed vide order No. R-III-136/2004-Adm.III dated 23.04.2004 and another petition filed by him was rejected vide order dated 27.01.2005.
2. Petitioner by the medium of this writ petition seeks writ of certiorari quashing all the aforementioned orders as also a writ of mandamus directing the respondents to pay him his wages, allowances etc., and consider him on duty.
3. Heard. I have perused the record.
4. The case set up by the petitioner is that he had sent a communication through Registered Post for extension of leave as he was unable to resume his duty due to ill health of his wife after the death of the newly born baby followed by his own ill health. He did not receive any document with the Memorandum except the Articles of Charge and he remained under treatment of a Medical Officer from 20.11.2001 to 04.09.2002 in District Hospital Dhar, Madhya Pradesh so he could not reply back. Inquiry against him was conducted ex parte. It is also contended that the Medical Officer, District Hospital Dhar, Madhya Pradesh vide his certificate dated 04.09.2002 declared him fit for resuming his duty so he reported to duty on 06.09.2002 but was not allowed to join.
5. Petitioner seeks quashing of his dismissal on the ground that the inquiry has been conducted in breach of Rules 27 3 and 31 of the Central Reserve Police Force, Rules 1955 (hereinafter to be referred as CRPF Rules) inasmuch as neither he was declared deserter as required under Rule 31 nor provided opportunity of being heard as the inquiry was conducted ex parte thereby violating the principles of Natural Justice. It is contended that respondent-5 acted in slipshod manner in appointing the Inquiry Officer without holding the Court of Inquiry in terms of Rule 31. It is contended also that respondent-5 has imposed grave punishment of dismissal from service in violation of section 10 of the Central Reserve Police Force, Act 1949 (hereinafter to be referred as the CRPF Act) as sections 10 and 11 do not provide for such deterrent punishment.
6. Respondents have opposed the writ petition. It is contended that petitioner committed offence under section 11 (1) of the CRPF Act by overstaying leave with effect from 23.10.2001. No communication for extension of leave was received from him. Charge was framed against him. He did not avail the opportunity to take part in the inquiry, which was conducted ex parte. Copy of the Inquiry Officer's report was sent to the petitioner by respondent No. 5 through registered Post giving him 15 days' time for submitting his reply but no reply was submitted by him. The petitioner committed serious offence of misconduct and indiscipline in his capacity as a member of the Force, departmental inquiry was 4 conducted against him in terms of Rule 27 of the CRPF Rules. Rule 31 of the CRPF Rules provides procedure for conducting a Court of Inquiry in case of desertion or absence without leave. Petitioner remained absent from 23.10.2001 for which Court of Inquiry was conducted as per order No. I X-1/2002-136-EC-II dated 28.05.2002 headed by Shri T. H. Khan, Dy. Commandant as Presiding Officer and Inspector Raghubir Singh and SI Jagat Ram as member I and II respectively and petitioner was declared as deserted vide order No. DI-I/02-EC-II-136 dated 08.06.2002. Sh. S. K. Rathore, Dy. Comdt. was appointed as Inquiry Officer for the purpose of conducting the departmental inquiry.
7. Mr. Anil Mahajan, in his submissions at bar reiterated all the grounds taken in the writ petition. The main plank of her submissions, however, was that the inquiry was conducted in breach of Rule 27 of the CRPF Rules as it was held ex parte without providing the petitioner sufficient opportunity of being heard and securing his presence after declaring him a deserter in terms of Rule
31.
8. Per contra, Mr. Danish Butt, learned CGSC argued that decision to hold departmental inquiry against the petitioner was taken after declaring the petitioner a deserter in terms of Rule 31 of CRPF Rules, the memorandum and Article of Charge were sent to the 5 petitioners by post at his available home address and even the Inquiry Officer had issued notice to the petitioner. Petitioner having opted not to take part in the inquiry is not entitled to raise the plea of breach of Rule 27, argued Mr. Butt.
9. In order to appreciate the grounds on which the termination has been assailed by the petitioner, I may on the basis of the pleadings and the record produced on behalf of the respondents give a brief account of the important aspects of the departmental proceedings held against the petitioner before passing the impugned order.
10(a) It is not disputed that fifteen days' leave from 08.10.2001 to 22.10.2011 was sanctioned in favour of the petitioner. Petitioner, therefore, should have reported back to his duty by the evening of 22.10.2001 or at the most in the morning on 23.10.2001. He, however, alleges to have reported on 06.09.2002 when he was not allowed to join.
10(b) Respondents' contention that the petitioner was declared as deserter vide order No. DI-I/2002-EC-II-136 dated 08.06.2002 after holding a Court of Inquiry presided over by Deputy Commandant, Mr. T. H. Khan with Inspector, Raghbir Singh and Sub-Inspector, Jagat Ram as its members is borne out from the record as a copy of the said order has been found on the record.
610(c) Decision to hold departmental inquiry against the petitioner seems to have been taken by respondent No. 5 vide his office order No. P. VIII. 1/2002-EC-II-136 dated 25.07.2002 and by the same order Mr. S. K. Rathore, a Dy. Commandant of the same Battalion, was appointed as the Inquiry Officer to hold the inquiry.
10(d) Memorandum dated 25.07.2002 was issued to the petitioner by post at his home address by respondent No. 5 vide his office No. P.VIII.1/2002-EC-II-136 dated 'the July 02'. The memorandum would show that it was enclosed with the Article of charge (Annexure-I), a statement of imputation of misconduct/misbehavior (annexure-II), a list of documents and a list of witnesses in support of the charge (Annexures-III and IV). The memorandum clearly mentions that the inquiry was to be held under Rule 27 of CRPF Rules and the petitioner was directed to submit within ten days of the receipt of the memorandum a written statement of his defence and also to state whether he desired to be heard in person. Petitioner was also cautioned that if he does not appear in person or does not submit his written statement of defence in the aforementioned ten days it will be presumed that 'it is not reasonable practicable to hold an inquiry in the manner provided in the Rules' and the inquiry shall be 7 held ex parte. The Article of charge dated 25.3.2002 enclosed with the memorandum reads;
"STATEMENT OF ARTICLES OF CHARGE FRAMED AGAINST NO. 911164768 CT/GD G.P.WAGHMODE OF HQ/136 BN C.R.P.F ARTICLE-I That No. 911164768 Ct/GD G.P.Waghmode of HQ/136 BN CRPF, while functioning as Ct/Gd has committed a serious offence of misconduct/indiscipline in the discharge of duty in his capacity as a member of the Force U/S 11 (1) of CRPF, Act-1949 in that he is overstaying from leave w.e.f. 23/10/2001 (FN) till date without permission or sanction of leave from the competent authority.
Sd/-
(A .S. Sidhu ) COMMANDANT"
10(e) The Inquiry Officer, Mr. S. K. Rathore, wrote a letter dated 30.07.2002 vide his No. P- VIII-I/02-SKR to the petitioner at his home address clearly informing him that inquiry against him is to be held in terms of Section 11(1) of CRPF Act for misconduct/indiscipline committed by him by not reporting to his duty on 23.10.2001 after expiry of his leave and requesting him to immediately report to his duty and appear before him by 14.08.2002 to take part in inquiry and further making it clear that in case he does not appear the inquiry shall be hold ex parte.
10(f) The Inquiry Officer recorded the statements of the witnesses ex parte on 15.08.2002 and 16.08.2002. Vide his letter No. P-VIII-I/02-SKR dated 16.08.2002 he informed the petitioner about ex parte proceedings 8 conducted by him and asked him to file written statement of his defence up to 26.08.2002. The petitioner did not appear or file any statement of his defence. The Inquiry Officer submitted his report stating inter alia that the charge has been proved. The Disciplinary Authority, that is, respondent No. 5, vide his No. P. VIII-I/2002-EC-II dated 09.09.2002 sent a copy of the report to the petitioner at his home address further asking him to file his reply within fifteen days. On 28.09.2002 respondent No. 5 issued the impugned order of dismissal from service against the petitioner.
11. Scope and ambit of judicial review of the departmental actions is now well settled. It would be useful to refer to a recent decision of the Supreme Court in Nirmala J. Jhala v State of Gujarat & anr, (2013)4 SCC 301. Their Lordships after referring to State of Tamil Nadu v. S. Subramaniam, (1996)7 SCC 509, R. S. Saini v. State of Punjab, (1999)8 SCC 90, Govt. of A. P. v. Mohd. Nasrullah Khan, (2006) 2 SCC 373 and Zora Singh v. J. M. Tandon, (1971)3 SCC 834, have observed:
"24. The decisions referred to hereinabove highlight clearly, the parameter of the Court's power of judicial review of administrative action or decision. An order can be set aside if it is based on extraneous grounds, or when there are no grounds at all for passing it or when the grounds are such that, no one can reasonably arrive at the opinion. The Court does not sit as a court of appeal but, it merely reviews the manner in which the decision was made. The Court will not normally exercise its power of 9 judicial review unless it is found that formation of belief by the statutory authority suffers from mala fides, dishonest/corrupt practice. In other words, the authority must act in good faith. Neither the question as to whether there was sufficient evidence before the authority can be raised/examined, nor the question of reappreciating the evidence to examine the correctness of the order under challenge. If there are sufficient grounds for passing an order, then even if one of them is found to be correct, and on its basis the order impugned can be passed, there is no occasion for the Court to interfere. The jurisdiction is circumscribed and confined to correct errors of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of principles of natural justice. This apart, even when some defect is found in the decision making process, the Court must exercise its discretionary power with great caution keeping in mind the larger public interest and only when it comes to the conclusion that overwhelming public interest requires interference, the Court should intervene."
12. Section 9 of the CRPF Act, lays down the punishment for 'more heinous offences' by a member of the Force, besides providing a list of these offences. Section 10 provides a list of 'less heinous offences' and lays down the punishment for these offences. Absence without leave or over-staying the leave is mentioned at clause (m) of section 10. Punishment provided under sections 9 and 10 primarily is sentence of imprisonment, which can be imposed after judicial trial of the offender in terms of Rule 36 of the CRPF Rules. Section 11, however, empowers the Commandant of the Battalion or any other prescribed officer to inflict 'minor punishments' provided thereunder, besides or in lieu of suspension or dismissal to any member of the Force whom he considers to be 10 guilty of disobedience, neglect of duty or remissness in the discharge of any duty or of other misconduct in his capacity as a member of the Force. Punishment under section 11 can be inflicted after a departmental inquiry as per and in accordance with rule 27 of the CRPF Rules.
13. It clearly emerges from a combined reading of sections 9, 10 and 11 of the CRPF Act that, whereas a member of the Force can be punished for the offences in terms of sections 9 and 10 of the Act after his judicial trial, a departmental action against him for the same offences/misconduct committed by him can be taken under section 11 even if no action under section 9 or section 10 is taken. Law in this regard has been stated in Union of India & others v. Ghulam Mohd. Bhat, AIR 2005 SC 4289. Hon'ble Court has held that section 11 of CRPF Act deals with minor punishments as compared to the punishments prescribed in section 9 and section 10 and these punishments may be awarded in lieu of, or in addition to, suspension or dismissal. Further it has been held:
"6. The use of words 'in lieu of, or in addition to, suspension or dismissal', appearing in sub-section (1) of Section 11 before clauses (a) to (e) shows that the authorities mentioned therein are empowered to award punishment of dismissal or suspension to the member of force who is found guilty and in addition to, or in lieu thereof, the punishment mentioned in clause (a) to (e) may also be awarded.11
7. It may be noted that Section 9 of the Act mentions serious or heinous offences and also prescribes penalty which may be awarded for them. Section 10 deals with less heinous offences and clause (m) thereof shows that absence of a member of the force without leave or without sufficient cause or overstay without sufficient cause, is also mentioned as less heinous offence and for that also a sentence of imprisonment is provided. It is, therefore, clear that Section 11 deals with only those minor punishments which may be awarded in a departmental inquiry and a plain reading thereof makes it quite clear that a punishment of dismissal can certainly be awarded thereunder even if the delinquent is not prosecuted for an offence under Section 9 or Section 10."
"9. This Court had occasion to deal with the cases of overstay by persons belonging to disciplined forces. In State of U.P. v. Ashok Kumar Singh (1996 (1) SCC 302) the employee was a police constable and it was held that an act of indiscipline by such a person needs to be dealt with sternly. It is for the employee concerned to show how that penalty was disproportionate to the proved charges. ....."
14. The legal position as stated above negates the contention that sections 10 and 11 of the CRPF Act do not provide for the punishment of dismissal from service.
15. Contention of the petitioner that proceedings under Rule 31 of CRPF Rules were not held and departmental Inquiry was conducted without declaring him a deserter fails as it has been found that a Court of Inquiry in terms of Rule 31 was duly held and petitioner was declared as a deserter before proceeding against him under Section 11 (1) of CRPF Act.
1216. The other contention, which is important, is that the inquiry was held in breach of Rule-27 of the CRPF Rules. Rule 27(c) lays down the procedure for conducting a departmental inquiry for taking departmental action under section 11 of the CRPF Act. A plain reading of the Rule 27(c) would show that it incorporates the Principle of Natural Justice that no one should be condemned unheard (audi alteram partem).
17. It can be said that Rule 27 of the CRPF Rules primarily does not contemplate holding ex parte inquiry for the reason that clause (c) thereof provides for reading out the charge to the accused and giving him copy of the charge at least 48 hours before commencement of the inquiry. It mandates also the recording of the statement of the accused and giving him right to cross-examine the witnesses. All such requirements can be fulfilled only if the accused takes part in the inquiry. Compliance to Rule 27 in this strict sense, however, is possible only when accused takes part in the inquiry and not in a case where he has absented without leave and has been declared a deserter and does not take part in inquire in spite of notice. Requirement of Rule 27(c) in such a case would be satisfied if the accused is provided sufficient opportunity to explain his position, appear before the Inquiry Officer and take part in the inquiry. This in turn inheres that the accused is duly informed about the nature of charge for 13 which the inquiry is to be held and time and place of the inquiry and provided sufficient time for submitting his reply and/or appearing before the Inquiry Officer. This will satisfy the requirement of the principle of audi altram patrem by providing sufficient and reasonable opportunity of being heard to the offender against whom departmental action is proposed to be taken.
18. This certainly is not a case where petitioner did not have the information about the time and place of inquiry or of the charge for which inquiry and departmental action was proposed to be held. Petitioner does not deny to have overstayed the leave. He admits to have received the memorandum and the Article of charge against him. As explained above, the time and place of inquiry as also the charge for which the inquiry was to be held were clearly mentioned in the memorandum and the Article of charge. Petitioner does not say that either the memorandum was not received by him within time or that he did not have sufficient time to report to his duty or send his reply to the memorandum or the charge.
19. Petitioner's contention that he could not report to duty or reply the charge for the reason that the memorandum was not accompanied with the material said to have been enclosed therewith except the charge-sheet or that he was suffering from illness neither have any legal value nor 14 can be entertained in exercise of the power of judicial review. Such a contention cannot be entertained because it involves questions of fact which cannot be determined in a writ petition. The contention has no substance and value for the reason that having come to know about the inquiry for a specific charge against him, petitioner's failure in not taking part in inquiry and putting forth his defence cannot be justified. It was his deliberate decision for which no redressal can be sought from this Court.
20. Petitioner having deliberately opted not to take part in inquiry or respond to the charge-sheet cannot be heard assailing the inquiry proceedings and the departmental action against him, which was permissible under Section 11 (1) of the CRPF Act.
21. Viewed thus, this writ petition has no merit and the same is dismissed.
22. Disposed of.
(Janak Raj Kotwal) Judge Jammu:
03.02.2016 Rakesh